1. Seafari St Lucia Ltd 2. Rodney Bayside Ltd 3. Marcarius Joinville Claimants v 1. The Harbour Proprietors Unit Plan No 02/2008 Otherwise known as the Harbour Condominium 2. Michael Whitfield Defendants

• Jurisdiction: Caribbean States
• Judge: Belle, J.
• Judgment Date: 25 September 2014
• Judgment citation (vLex): [2014] ECSC J0925-3
• Docket Number: CLAIM NO. SLUHCV 2012/0363
• Court: Eastern Caribbean Supreme Court
• Date: 25 September 2014

[2014] ECSC J0925-3

IN THE HIGH COURT OF JUSTICE

CLAIM NO. SLUHCV 2012/0363

Between:

1. Seafari St Lucia Limited

2. Rodney Bayside Limited

3. Marcarius Joinville

Claimants

and

1. The Harbour Proprietors Unit Plan No 02/2008 Otherwise known as the Harbour Condominium

2. Michael Whitfield

Defendants

Belle, J.

1 The Claimants and the Defendants are neighbours. They share the use of a right of way to Rodney Bay from the area of the Rodney Bay Marina. The Claimant is a restaurant business known for its proprietorship of a restaurant known as Big Chef. The Claimants recently opened a dockside restaurant and bar called Tapas.

2 The Defendant is the owner of a condominium complex where visitors and some owners reside.

3 The opening of Tapas appears to be the bone of contention between the parties since for a number of years they coexisted as neighbours without complaint until the Claimant took steps to construct and plan the opening of "Tapas."

4 The Complaint of the Defendants in this suit is that the opening of Tapas would cause disturbance to the owners and lessors of condominiums who reside close to the right of way which passes between the two properties. The Applicants/Defendants has given evidence that if an event were held at the site of the Tapas some of the Applicants/Defendants' residential condominiums would be affected by the smell of food, loud music and the movement of patrons. Apart from that they complain that the windows from the top floor of Tapas provided a view straight into the bedrooms and other rooms of the Applicants/Defendants' condominiums across the right of way, These circumstances prompted negotiations of the conditions under which the Tapas restaurant could be opened.

5 It would therefore appear to have been in the interest of the parties to work out a mutually acceptable agreement. But they failed to do so.

6 The Claimant applied for an injunction on 18^th April, 2012 after the Defendant erected a fence to block the direct entrance of patrons attempting to reach the Tapas restaurant by way of the night life. Consequently the Claimant is hereinafter in this judgment referred to as the Respondents/Claimants and the Defendant as the Applicants/Defendants.

7 The injunction obtained by the Respondents/Claimants restrained the Applicants/Defendants from blocking the Respondents/Claimant's access to the right of way in contention pending trial of the issues. At this point the parties began to negotiate a settlement.

8 The settlement talks broke down and the Applicants/Defendants on the 5^lh day of November, 2012 applied for the Claimants' Claim to be struck out and for the injunction to be discharged or stayed.

9 In their affidavit in support of the Application for the injunction the Respondents/Claimants' Marcarius Joinville states in paragraph 8 of his affidavit of April 18th 2012:

"On Wednesday 28th March, 2012, the Respondents commenced the construction of the fence. On Thursday 29th March, 2012 at approximately 5 p.m. I noticed that the Respondents, whether by themselves, their servants or agents bored holes into the concrete pathway constructed by the Applicants apparently on the lands belonging to the Applicants namely Parcles 457 and 459."

10 In paragraph 10 Macarius Joinville sates:

"In the interim, along with our counsel aforementioned attempted to arrive at a compromise with the Respondents in attempt to resolve the issue of the blocking, restriction of hindering of the Applicant's access to the right of way to no avail by meeting with the board of the First Respondent at which meeting the Second Respondent was in attendance along with other board members namely, Martin Johnson, Bernard Johnson, Robert Joseph while Nick Bowden attended along with Rosemary Joinville and Mr. Maragh. The Second Respondent made it clear that he intended to erect the fence unless the Tapas restaurant was altered from its approved purpose as a restaurant to residential. The meeting took place on Thursday 12th April, 2012.

11 In paragraph 11 the deponent Macarius Joinville states:

"I sought the agreement of the Respondents not to continue with the erection of the fence until we had collectively come up with options to allay the fear of the Second Respondent that the Tapas would not affect his enjoyment of his villa, but they have continued with the construction of the fence."

Respondents/Claimants' Submissions

12 In his submissions counsel for the Respondents/Claimants states that the relevant rules relating to summary judgement are Part 15 of the CPR and Part 26 (3) which deals with striking out applications.

13 Counsel summarized the Applicants/Defendants' application as follows:

• "(1) The Claimants/Respondents have no real prospect of succeeding on the claim or the issues.

• (2) The evidence produced by the Defendants supported the Defendants' counterclaim and defence.

• (3) The Respondents/Claimants have given no evidence in support of their assertion that the Defendants have trespassed on the Respondents/Claimants property."

14 The Respondents/Claimant's counsel argue that the main issue in the matter is whether a right of way exists along the path defined in the statement of claim and whether their servants, agents and customers access to the right of way has been unlawfully interfered with by the Defendants. I will discuss this matter in greater length later.

16 Applicants/Defendants argue that clearly a right of way exists but the origins and nature of the said right of way are disputed. However Counsel for the Respondents/Claimants argue there is no dispute that the Claimants respondents have set out a case which meets the legal requirements for the remedies sought.

LAW

17 The Respondents/Claimants argue that only in the clearest of cases should the court strike out or enter summary judgment.

18 Counsel argues that the Applicants/Defendants' case is that the court has not been provided with any compelling reason, fact or ground for granting the order for an injunction in the face of disputed factual and opinion evidence.

19 Secondly Counsel argues that Applicants/Defendants refer to an alleged agreement between them and IGY Marina, as the basis for asserting that the right of way is a private one. But no such agreement has been placed before the court and the Respondents/Claimants submit, that none can be found because it does not exist.

20 As far as the Application for the stay or discharge of the Interim order of 18th April 2012 is concerned counsel for the Respondents/Claimants argue that the Applicants/Defendants application alleges;

• (1) Failure to make full and frank disclosure;

• (2) No serious issues to be tried;

• (3) No trespass by the Defendants/Applicants

• (4) Counsel argues that paragraphs 4, 6 and 9 can be subsumed under the ground of failure to make full and frank disclosure

• (5) There is no substantive claim

• (6) Failure to serve the application and supporting affidavit in respect of the application for interim injunction

• (7) The order is unduly harsh

• (8) The risk of injunction against the Applicants/Defendants outweighs the risk of granting (discharging?) the injunction.

21 Counsel for the Respondents/Claimants argue that the authorities are settled. According to counsel all that the court had to be satisfied of was that the claim was not frivolous or vexatious i.e. that there was a serious question to be tried. He citedAmerican Cyanamid Co v Ethicon Ltd[1975] All ER 504, in support of this...